Attorneys from the in-house city attorney’s office may play several roles in the adjudicative process. A city attorney may serve: • In an evaluative capacity by assisting staff or a hearing body or official in interpreting ordinances and statutes or the conduct of proceedings; • As a legal advisor to the decisionmaker, providing guidance during an administrative hearing; • As a prosecutor or advocate in a contested hearing; and • In an investigative role in a matter that may later become the subject of an enforcement action and adjudicatory hearing. The requirement for a fair hearing affects whether one or various attorneys from an in-house city attorney’s office may be involved in the same quasi-judicial proceeding. Due process does not prohibit combining the investigative, advisory and prosecutorial/advocacy functions in the same public law office. However, in some situations, due process prohibits one attorney from having overlapping roles — to ensure the legal advisor to the decision-maker remains impartial. One city attorney cannot perform the prosecutorial/advocacy function and the advisory function in the same proceeding. Because a prosecutor is a partisan advocate for a particular position, the role of prosecutor “is inconsistent with the objectivity expected of [the] decision-makers.” Allowing one attorney to serve as both advocate and advisor in the same matter creates an appearance of impermissible bias because of the potential that the attorney’s advice to the decision-maker will be influenced by the same attorney’s role in advocating for a particular result. However, one attorney from an in-house city attorney’s office may serve as the prosecutor/advocate and another attorney from the same office may serve as the advisor in the same proceeding without
violating procedural due process if there is internal separation of these functions by figuratively implementing a “due process wall” between the attorneys. The city attorney’s office must be able to demonstrate that it uses procedures that effectively screen or prevent the attorney advisor from any potential involvement or responsibility in the attorney advocate’s preparation of the case. In addition, an in-house city attorney may act as advocate and advisor in unrelated matters before the same decisionmaker. The courts presume impartiality that is overcome only by facts demonstrating actual bias or an unreasonable risk of bias in that case. The presumption of impartiality may be overcome when there is evidence that the decision-maker views one attorney as its primary legal advisor even when that attorney intends to serve only in an advocacy role. In this scenario, a different attorney should undertake the advocacy role, and the two attorneys should be internally screened from each other by a due process wall.
Due Process Requirement: Cities May Need Two or More Private Law Firms Private law firms serving as the city attorney’s office also perform investigatory, evaluative, advisory and prosecutorial/ advocacy functions for quasi-judicial hearings and proceedings. To address due process issues, private law firms also use due process walls to provide internal separation of functions between attorneys serving in dual roles in the same quasi-judicial proceeding. However, the circumstances in which private law firms may use due process walls in quasi-judicial proceedings have become less clear because of a California appellate court decision earlier this year in Sabey v. City of Pomona. The Sabey decision limits the use of due process walls for law firm partnerships in adversarial disciplinary appeals. In Sabey, a city retained an
The principle of procedural due process under the federal and California constitutions requires a fair tribunal in the conduct of quasi-judicial proceedings.
attorney from a law firm partnership to investigate a police officer’s potential misconduct and then to advocate for the officer’s termination during a city council appeal hearing requested by the fired officer. Another partner from the same firm served as the attorney advisor to the city council during the appeal hearing, where the officer’s termination was upheld. The fired officer then sued, alleging his due process rights were violated because the city council was not advised by a neutral attorney. The law firm argued that there was no due process violation because the attorneys were separated by a due process wall within the firm. The court ruled that attorneys from the same law firm partnership may not undertake advocacy and advisory roles in the same advisory arbitration on a personnel matter even if they are screened by a due process wall. The court concluded that the advisory partner has a fiduciary duty to the advocate partner and to the firm. continued on page 23
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Western City, October 2013
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